PDA

View Full Version : Whaddaya mean, "unconstitutional"?


Librarian
02-09-2012, 2:26 PM
Dave Kopel just released an forthcoming article whose focus is the Patient Protection and Affordable Care Act (“PPACA”), (download from SSRN here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1988167), and the first section, bottom of page 2 through top of page 8, is a discussion of what different people mean by the term "unconstitutional".
I. Humpty Dumpty: “The” Meaning of “the Constitution”
When somebody proclaims an action “unconstitutional,” what do they mean?

There is no single answer to that question; different people mean different things, and sometimes the same people mean different things at different times.3 It is difficult to have intelligent and productive conversations about constitutionality when the participants in those conversations are using the word “unconstitutionality” in differing, ill- defined, and/or equivocal ways – which is one big reason why so much constitutional discourse is unintelligent and unproductive.4

Which of his suggested "families" do you mean when you use "unconstitutional"?

Private poll, multiple responses allowed.

==================================
ETA.

Rats.

Poll choices messed up, and I just noticed.

I tried to cut and paste from the paper:
(1) inconsistent with the text of the Constitution,
(2) inconsistent with social understandings about what the Constitution means,
(3) inconsistent with statements that various people (especially, Supreme Court Justices) have made about or in the name of the Constitution,
(4) inconsistent with predictions about what various people (especially, Supreme Court Justices) are likely in the future to say about or in the name of the Constitution), and
(5) inconsistent with certain policy or other personal preferences of the speaker. and both (3) and (4) were too long (over 100 char); I accidentally duped one option and left out (3).

Sigh.

Based on responses, I don't think it changes much, but my apologies.

bohoki
02-09-2012, 2:34 PM
i take "unconstitutional" to mean contrary to specified freedoms mentioned in the constitution and or court rulings defining such enumerations

POLICESTATE
02-09-2012, 2:36 PM
Unconstitutional means out of line with the Constitution. Or more simply, "not" of the Constitution. Therefore UN-constitutional.

If people can't agree on that, then they aren't going to agree on much else.

And that is where politicians spend most of their time: not agreeing on much.


I don't know which family I fit in, don't care. Un-something is not something.

taperxz
02-09-2012, 2:43 PM
Due to "reference" We as citizens have the ability to look at certain results of the constitution. Since this is the case, unconstitutional seems to take on how one right is perhaps interpreted one way and another right is scrutinized another.

Case and point, freedom of speech v. RKBA. People can generally say what they want within reason, but people can't really keep and bear arms the way they exercise their freedom of speech. Therefore many gun laws tend to be considered unconstitutional.

mtptwo
02-09-2012, 2:55 PM
Just because something isn't enshrined in constitution doesn't mean that constitution doesn't apply to or cover it. There is no mention of murder in the constitution for instance, but all most all of us agree that making murder illegal is constitutional.

My take: A combination of text and history of interpretation (of which does and must change with time)

POLICESTATE
02-09-2012, 2:55 PM
Due to "reference" We as citizens have the ability to look at certain results of the constitution. Since this is the case, unconstitutional seems to take on how one right is perhaps interpreted one way and another right is scrutinized another.

Case and point, freedom of speech v. RKBA. People can generally say what they want within reason, but people can't really keep and bear arms the way they exercise their freedom of speech. Therefore many gun laws tend to be considered unconstitutional.

I disagree, many guns laws ARE unconstitutional. I don't care what other people consider, especially those same people who use their 1A rights to denigrate and assault 2A rights. To me it's all or nothing. Either we have rights or we don't have rights.

In theory we have the right to keep and bear arms.
In practice it's not so much a right as an entitled, traditional privilege.

If we treated 1A like 2A can you imagine? We wouldn't have CGN, or maybe we would but we'd only have 10% of the people who can get a "may issue" LTP (License to Post) and of course they'd have to be very careful about what they post and how they post it.

Can you imagine if we treated the 4A and 5A like 2A? We're going that way for sure, but take our "progress" on the reinterpretations of those amendments or the circumvention of them into account and see what the logical outcome is.

Ultimately it's a country where everyone has rights but those rights are so subordinated to the common good that in practice we have no rights at all.

Without 2A we would have no hope of restoring practical rights in that situation. Founding fathers wrote about things like this 200 years ago, fact is most of them are far smarter and fair to their fellow man than just about all of our so-called leaders today. Yet somehow they are painted as "quaint" and from a "different time". These people CHANGED human history with very forward-thinking ideas based on ancient principles. They also recognized that no good thing lasts forever, that things have to be reset from time to time, otherwise it just goes bad.

And people think Obama, or GWB is some kind of inspiring figure? Hahaha. Embarrassing yes, inspiring no.

yellowfin
02-09-2012, 2:58 PM
To me, it refers to being out of phase with the text of the Constitution, the context under which it was adopted (e.g. Federalist Papers and Declaration of Independence), and the general sense of Anglo American traditional concept of liberty. Somewhere between 50 and 90 percent of government as we know it today is in flagrant violation thereof yet little or nothing is done about 75-80% of it.

There was some talk a few years ago about freezing government spending at 2008 year levels--I want 1808 year levels of government.

taperxz
02-09-2012, 3:07 PM
I disagree, many guns laws ARE unconstitutional. I don't care what other people consider, especially those same people who use their 1A rights to denigrate and assault 2A rights. To me it's all or nothing. Either we have rights or we don't have rights.


The laws in CA take our rights away clearly

In theory we have the right to keep and bear arms.
In practice it's not so much a right as an entitled, traditional privilege.


In CA. Not so much in most states where they do have that right in their everyday lives
If we treated 1A like 2A can you imagine? We wouldn't have CGN, or maybe we would but we'd only have 10% of the people who can get a "may issue" LTP (License to Post) and of course they'd have to be very careful about what they post and how they post it.


I think most here would not care if CGN went away because we had very few laws restricting firearms. just sayin... Even CGF will dis band once their mission is accomplished. (their words)

Can you imagine if we treated the 4A and 5A like 2A? We're going that way for sure, but take our "progress" on the reinterpretations of those amendments or the circumvention of them into account and see what the logical outcome is.


And your point is?

Ultimately it's a country where everyone has rights but those rights are so subordinated to the common good that in practice we have no rights at all.


Ever been to another country? RIGHTS, we have!

Without 2A we would have no hope of restoring practical rights in that situation. Founding fathers wrote about things like this 200 years ago, fact is most of them are far smarter and fair to their fellow man than just about all of our so-called leaders today. Yet somehow they are painted as "quaint" and from a "different time". These people CHANGED human history with very forward-thinking ideas based on ancient principles. They also recognized that no good thing lasts forever, that things have to be reset from time to time, otherwise it just goes bad.


If the founding fathers were SOOO smart, why are we in this predicament today? Why must we wait for SCOTUS for an interpretation of the smart peoples ideas??


And people think Obama, or GWB is some kind of inspiring figure? Hahaha. Embarrassing yes, inspiring no.

The President can't change things. Only the people can.
__________________

POLICESTATE
02-09-2012, 3:27 PM
The laws in CA take our rights away clearly

I think most here would not care if CGN went away because we had very few laws restricting firearms. just sayin... Even CGF will dis band once their mission is accomplished. (their words)
I used CGN as an example, the same effect would apply to every other site, like Facebook, The Sewing Circle, Comments sections on news articles would disappear, eh whatever.


And your point is?
That we would end up with no rights at all.


Ever been to another country? RIGHTS, we have!
Yes I have been to other countries, and I understand what you are saying, but looking at the ideal and what we have now I see a lot of disparity between the two. I also see it trending to less rights. Must remain eternally vigilant and all that right?


If the founding fathers were SOOO smart, why are we in this predicament today? Why must we wait for SCOTUS for an interpretation of the smart peoples ideas??
They were, they said in their writing that people should be able to redo their government, that government only operates by consent of the governed. True we can argue we still have that today, but the governed are more and more turning into self-absorbed sheep. So in effect, government will lose the consent of a free people (sorry but a distracted and dependent people are not a free people) and then what do we have left over?

I'm willing to bet that most founding fathers would have expected the people of the USA to take a more firm hand in their government than we did. True they couldn't foresee radio, TV or the internet and of course all the other toys we have now. Which also help to dumb us down I might add.


The President can't change things. Only the people can.
That IS true to an extent, except when people become convinced that the president CAN change things, then the perception can begin to become the reality.
__________________


Perception and reality are two different things, but they can flip. The reality is guns are a right, the perception is they're "kind of" a right, some have even said a deprecated right. Once enough perception is changed the reality will change and guns will cease to be a right. Why do you think the topic of the SCOTUS line-up and its effects on our 2A right are always a hot topic on CGN?

yellowfin
02-09-2012, 3:30 PM
Ever been to another country? RIGHTS, we have! While true, this is only saying that a person with Alzheimer's has more mental capacity than a garden snail.If the founding fathers were SOOO smart, why are we in this predicament today? They wrote the manual for operating the country, but sometime around the 1910's people quit going by the instructions and started running it outside the recommended parameters. That's the problem, not how they wrote things. Why must we wait for SCOTUS for an interpretation of the smart peoples ideas??It's not that I need advice on how to act within their smart ideas, it's how government reacts to how I act that's the problem which SCOTUS needs to fix. We have a problem of government saying no to WAY too many things we'd do if otherwise left alone. There's a LOT of things I'd do if it wouldn't cost my livelihood, my future, and my freedoms to do so, all of them perfectly harmless, ethical, and beneficial to other people but prohibited by Uncle Grinch.
The President can't change things. Only the people can.I'd love to be able to change prior presidents' executive orders or judicial appointments, but as merely part of the average "we the people", I can't thus far in history, nor can 10 or even 100 of my friends together.

taperxz
02-09-2012, 3:40 PM
I'd love to be able to change prior presidents' executive orders or judicial appointments, but as merely part of the average "we the people", I can't thus far in history, nor can 10 or even 100 of my friends together.

This is where you are mistaken. "the people" are CGN, NRA, SAF. No President can just change things all together. It takes Congress and the "WILL" of the people.

2A rights in this country are actually pretty good! Just not if you live in New York:p Or CA:facepalm: (and a few other states)

kemasa
02-09-2012, 3:52 PM
I don't see what I would consider the answer, which would be the intent of the Constitution, which is not the social understanding of it (some people just don't understand anything) and may not be the specific text. Closest would be the text, but as with anything it is not always clear.

For example, using high tech equipment to look into a person's home. Is that really a search? I would say so, but others might not.

BigDogatPlay
02-09-2012, 3:52 PM
A strict read would be inconsistent with the text (and the intent) of the Constitution, and that's how I vote. I would also argue that in our modern society, where the meaning of words and phrases have been greatly blurred in common usage and in the media the larger population might believe that the second answer is most correct.

inconsistent with social understandings about what the Constitution means

morfeeis
02-09-2012, 4:08 PM
inconsistent with the text of the Constitution

anything else is misusing the Constitution to fit your needs.

sholling
02-09-2012, 4:15 PM
I use the term to refer to any law or regulation that is inconsistent with the general public meaning of the text of the constitution at the time it was ratified or amended. This is the method championed by Professor Randy Barnett in his book "Restoring The Lost Constitution: The Presumption of Liberty (http://www.amazon.com/Restoring-Lost-Constitution-Presumption-Liberty/dp/0691123764)". Professor Barnett argues that it was written to be plainly understood by the people and that the only way that we can assure a consistent application of the constitution is to read it via the lens of plain English as the average American of the time would have understood the words and phrases. He rightly argues that any other way of reading the constitution subjects it to the political whims and prejudges of later judges. In other words our current system of crystal ball gazing and navel contemplation to define meaning or intent. Or as we sometimes see from judges - just plain rejection of the limits imposed by the constitution in favor of a favored political cause.

POLICESTATE
02-09-2012, 4:17 PM
I don't see what I would consider the answer, which would be the intent of the Constitution, which is not the social understanding of it (some people just don't understand anything) and may not be the specific text. Closest would be the text, but as with anything it is not always clear.

For example, using high tech equipment to look into a person's home. Is that really a search? I would say so, but others might not.

I suppose it also depends on what they can see. If they can make out body shapes and people moving around and doing various activities without there a window being wide open then I'd say that is invasion of privacy. If it's passive sensing of gases/chemicals/sounds emanating FROM the home then that's not since you're just looking at what you can "see" from the outside. If they are inserting a device that captures those things from inside the home then it's invasion and should require a warrant.

Not to mention that people in a residence (especially of all places) have more than a reasonable expectation of privacy.

kemasa
02-09-2012, 4:25 PM
I suppose it also depends on what they can see. If they can make out body shapes and people moving around and doing various activities without there a window being wide open then I'd say that is invasion of privacy. If it's passive sensing of gases/chemicals/sounds emanating FROM the home then that's not since you're just looking at what you can "see" from the outside. If they are inserting a device that captures those things from inside the home then it's invasion and should require a warrant.

Not to mention that people in a residence (especially of all places) have more than a reasonable expectation of privacy.

So if they can't see you, but know what you are eating, smoking, etc. then it is ok? What if you are not home and they use it to "see" everything in your house? What about flying over and using lens to look in all your windows?

How about checking to see what is coming out of your sewer lines?

Just limit it to "viewing" from off the property.

At what point is it too far? Personally, I think it is too far when they target a house and use equipment, other than human eyes and ears, to monitor.

Is it acceptable to bounce a laser off the window to listen to what is being said inside?

jwkincal
02-09-2012, 4:28 PM
Is it acceptable to bounce a laser off the window to listen to what is being said inside?

The CIA has been using that trick for decades...

POLICESTATE
02-09-2012, 4:31 PM
I agree, at what limit? Both sides could articulate much, but I think as soon as your property is being manipulated in any manner that is a clear intrusion. Lasers bouncing off windows for instance.

If they're just standing out in the street smelling the bacon you're cooking I don't think anyone could argue that is intrusive.

Checking your sewer line... at what point? Out in the street? Ah not your sewer line there. On your property it's a different matter.

How about internet? Getting onto someone's wifi router that has no password is still trespass according to law (since you don't have permission it's unauthorized access) so yeah that's intrusive too. Splicing into your internet line out in the street? Not your line there, BUT that is a wiretap is it not?

Using Xrays or other stuff that allows them to see through your house (including that backscatter crap) is completely intrusive.

To me, anything they can't get by simple observation from the outside of your property is intrusive and requires a warrant. Trash can issues are similar to this. If it's in the can it needs a warrant, in the truck it doesn't (but good luck finding anything) IIRC.



So if they can't see you, but know what you are eating, smoking, etc. then it is ok? What if you are not home and they use it to "see" everything in your house? What about flying over and using lens to look in all your windows?

How about checking to see what is coming out of your sewer lines?

Just limit it to "viewing" from off the property.

At what point is it too far? Personally, I think it is too far when they target a house and use equipment, other than human eyes and ears, to monitor.

Is it acceptable to bounce a laser off the window to listen to what is being said inside?

jwkincal
02-09-2012, 4:42 PM
Using Xrays or other stuff that allows them to see through your house (including that backscatter crap) is completely intrusive.

To me, anything they can't get by simple observation from the outside of your property is intrusive and requires a warrant. Trash can issues are similar to this. If it's in the can it needs a warrant, in the truck it doesn't (but good luck finding anything) IIRC.

You seem to be saying that anything "passive" is OK, and while that presently doesn't let surveillance gear see into your home, there will come a point when it does. One has to wonder what will happen if clear lines aren't drawn sooner rather than later.

POLICESTATE
02-09-2012, 5:05 PM
You seem to be saying that anything "passive" is OK, and while that presently doesn't let surveillance gear see into your home, there will come a point when it does. One has to wonder what will happen if clear lines aren't drawn sooner rather than later.

Thermal imaging is passive, but it's pretty invasive considering the things you can make out with it depending on conditions. Other means exist.

I think that tech that captures more than what the eye can see (except for maybe night vision) and the ear can hear is an intrusive method and should require a warrant.

Lulfas
02-09-2012, 5:09 PM
anything else is misusing the Constitution to fit your needs.

Then you agree the Air Force is unconstitutional and states are perfectly fine to quarter police in your house?

stix213
02-09-2012, 5:14 PM
I take "unconstitutional" to mean "inconsistent with how SCOTUS has ruled on the constitution" but I don't see that on your list.

Librarian
02-09-2012, 5:39 PM
I take "unconstitutional" to mean "inconsistent with how SCOTUS has ruled on the constitution" but I don't see that on your list.

Option 3 was supposed to be "(3) inconsistent with statements that various people (especially, Supreme Court Justices) have made about or in the name of the Constitution" but I screwed up; see the bottom of the first post.

curtisfong
02-09-2012, 6:34 PM
"should be != what is"

and the converse(?) "is != ought": http://en.wikipedia.org/wiki/Is%E2%80%93ought_problem

yellowfin
02-09-2012, 6:45 PM
I take "unconstitutional" to mean "inconsistent with how SCOTUS has ruled on the constitution" but I don't see that on your list.They've ruled horrendously wrongly on it several times, so that's a really flawed standard if held verbatim.

a1c
02-09-2012, 7:18 PM
Con law classes exist for a reason.

Things are not always as simple as they seem. There is a reason section 1 of Article III was written by the Founding Fathers.

Then again, some will go all the way to the Judiciary Act and will consider it a misinterpretation of the US Constitution, even though most of the Founding Fathers were still alive and approving at the time.

yellowfin
02-09-2012, 7:57 PM
Con law classes exist for a reason.To explain the damage done, primarily, and then to make sense of the wreckage.

Wherryj
02-10-2012, 8:43 AM
Dave Kopel just released an forthcoming article whose focus is the Patient Protection and Affordable Care Act (“PPACA”), (download from SSRN here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1988167), and the first section, bottom of page 2 through top of page 8, is a discussion of what different people mean by the term "unconstitutional".


Which of his suggested "families" do you mean when you use "unconstitutional"?

Private poll, multiple responses allowed.

==================================
ETA.

Rats.

Poll choices messed up, and I just noticed.

I tried to cut and paste from the paper:
and both (3) and (4) were too long (over 100 char); I accidentally duped one option and left out (3).

Sigh.

Based on responses, I don't think it changes much, but my apologies.

Thanks for posting this. This is in my opinion one of the greatest issues of our time. Too many people have taken to looking at the Constitution as the "living" document-as taught by the typically liberal leaning education system.

While this is a nice idea, there is NEVER the ability to get EVERYONE to agree on one particular stance. It also is impossible to run a republic/legal system, etc. without a CLEAR set of rules. These rules require that the meaning of laws be specific.

All too often it has become acceptable to reinterpret the meaning of rules/laws to "fit" with "modern times". The problem with this is that ALL people come with personal bias. This allows a specifically written law to become whatever the INDIVIDUAL wants it to mean.

A system cannot run with this sort of bias. Often ignored is the fact that our system has a way of dealing with laws that no longer apply. Such laws can be rewritten or amended. That is not the easy way, however.

Mesa Tactical
02-10-2012, 8:50 AM
They've ruled horrendously wrongly on it several times, so that's a really flawed standard if held verbatim.

But that's all we have.

Given that what is and isn't Constitutional is basically a matter of opinion, the only opinions that really matter are those of at least five US Supreme Court justices.

All the rest is froth and handwaving.

morfeeis
02-10-2012, 9:18 AM
Then you agree the Air Force is unconstitutional and states are perfectly fine to quarter police in your house?
You lost me .......

Bad Voodoo
02-10-2012, 10:07 AM
The 'text' of the Constitution is written in plain, proper English. Doesn't require translation of any sort in my estimation. Only the common sense our Founders assumed we would maintain.

HBrebel
02-10-2012, 10:12 AM
Is the constitution even real anymore? I mean, the feds and the federal judges stomp all over it daily.

Bad Voodoo
02-10-2012, 10:24 AM
Is the constitution even real anymore? I mean, the feds and the federal judges stomp all over it daily.

Nope, and if it were up to those "serving" our various judiciaries, i.e., Ruth Joan Bader Ginsburg, et al, we'd all be collectively governed by some pie-in-the-sky politically correct all-controlling UN world governing document(s).

A-J
02-10-2012, 10:27 AM
Constitutional should mean "enumerated in the constitution" but that does not seem to be the case nowadays.

mtptwo
02-10-2012, 10:33 AM
You lost me .......

the constitution only mentions powers of the President applying to the army and navy and the militia of several states. It does not grant power to command the Airforce, nor the Marines.

Also, the 3rd amendment, bars the government from quartering troops in homes in times of peace. If taken literally, then States have the freedom to quarter their militias in homes.

yellowfin
02-10-2012, 11:31 AM
Technically the Air Force is a division of the Army (was known as Army Air Corps) and Marines are part of the Navy, so they're constitutional on that basis.

Uxi
02-10-2012, 12:21 PM
The text. Including the Amendments, especially without ignoring the 9th and 10th.

The more I think about it, though, the more I think we need 34 States to call for a new Convention to put forth some suitable Amendments.

In particular, need the abuse of the commerce and general welfare clauses to end. Balanced Budget Amendment ending baseline budgeting and with a spending cap tied to GDP and a supermajority required to raise taxes would also be nice. 2 year sunset to all budgeting requiring reappropriation could help, too. Think we could get 38 States to ratify reinforcement of the 2nd outlawing the NFA and GCA and explicitly binding it against the States? I do!

Lulfas
02-10-2012, 1:46 PM
Technically the Air Force is a division of the Army (was known as Army Air Corps) and Marines are part of the Navy, so they're constitutional on that basis.

Believe that was changed in 1947 when the Army Air Corp was abolished and everything from them was transferred to the USAF.

aklover_91
02-10-2012, 4:20 PM
Think we could get 38 States to ratify reinforcement of the 2nd outlawing the NFA and GCA and explicitly binding it against the States? I do!

Not in a billion years.

vincewarde
02-10-2012, 4:30 PM
Believe that was changed in 1947 when the Army Air Corp was abolished and everything from them was transferred to the USAF.

You are 100% correct.

jwkincal
02-10-2012, 4:35 PM
But the USAF is still funded and organized as an army, indeed the Constitution specifies "armies" plural. It just doesn't have the word "army" in its name. Presumably it is subject to the same 2-year restriction as the other US Army, for whatever that may be worth.

vincewarde
02-10-2012, 4:45 PM
The text. Including the Amendments, especially without ignoring the 9th and 10th.

The more I think about it, though, the more I think we need 34 States to call for a new Convention to put forth some suitable Amendments.

In particular, need the abuse of the commerce and general welfare clauses to end. Balanced Budget Amendment ending baseline budgeting and with a spending cap tied to GDP and a supermajority required to raise taxes would also be nice. 2 year sunset to all budgeting requiring reappropriation could help, too. Think we could get 38 States to ratify reinforcement of the 2nd outlawing the NFA and GCA and explicitly binding it against the States? I do!

1) A constitutional convention would never be called because of the concern that it could not be limited to the issues for which it was called. I would be opposed for this very reason.

2) The only way the 2nd Amendment will ever be revised by means of an amendment is if both sides in the debate want it and can agree on the revisions. This would mean that both sides would have to get something they want. I do not see that happening.

3) The left is very happy to change the constitution simply by putting justices on SCOTUS who do not care one bit what the constitution says or what the founders intended. That is why 4 more years of Obama would mean the end of the 2nd Amendment. Change one judge and the next 2nd Amendment case to go before the court will result in Heller/McDonald being totally reversed. We already have seen this in the minority opinion in McDonald. IMHO anyone who rules that the 2nd Amendment does not protect a personal right does not care one bit what the constitution says.

yellowfin
02-10-2012, 4:51 PM
Interesting how now and only now people are concerned about Obama appointed judges, where before the mantra was "Oh don't worry, it's staying the same, doesn't change anything. It's not worth the political capital to fight." :facepalm: "Don't worry, we're not falling 10,000 feet, we get a parachute for the first 3000 feet.". Idiots.

GettoPhilosopher
02-10-2012, 5:53 PM
I'd add that (at least in part) it means being contra to the principles and tenor of the Constitution. Something can be unconstitutional without necessarily having a blatant constitutional opposite. (i.e. there are things that are unconstitutional even though they are not as blatant as "1A protects free exercise of religion, so banning religion is unconstitutional")

Lulfas
02-10-2012, 5:59 PM
But the USAF is still funded and organized as an army, indeed the Constitution specifies "armies" plural. It just doesn't have the word "army" in its name. Presumably it is subject to the same 2-year restriction as the other US Army, for whatever that may be worth.

Right, but that's a bit of sophistry. The Founders said Army and Navy, and they meant for there to be a land based force and a sea based force. They never envisioned an air force, or planned one. Even the common definition of Army is specifically related to ground based forces. If you want to go PURELY by the text, you would have to consider the Air Force unconstitutional.

Librarian
02-10-2012, 6:25 PM
Right, but that's a bit of sophistry. The Founders said Army and Navy, and they meant for there to be a land based force and a sea based force. They never envisioned an air force, or planned one. Even the common definition of Army is specifically related to ground based forces. If you want to go PURELY by the text, you would have to consider the Air Force unconstitutional.

On that reasoning you'd have to argue they never planned to govern more than 13 states.

vincewarde
02-10-2012, 7:06 PM
I find it very interesting how many parallels there are between constitutional law and Biblical Theology. Both involve the interpretation of written documents and many of the same rules apply. In addition, some of the debates are the same. For instance, is a text to be correctly interpreted by itself - based solely on the words - OR - does it have to be interpreted in light of the original author's intent and in the context of his culture? Are we bound by the governing documents (Bible or Constitution), or can we use reason and other documents instead? Are the source documents even relevant today?

Like I said, I just find the parallels interesting. It's easy to see how the Simon Greanleaf School of Law could offer a program that offered degrees in both law and theology. It takes the same kind of mind to do either.

Lulfas
02-10-2012, 7:14 PM
On that reasoning you'd have to argue they never planned to govern more than 13 states.

Article IV would seem to cover that fairly well.


New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

Tarn_Helm
02-10-2012, 10:05 PM
The 'text' of the Constitution is written in plain, proper English. Doesn't require translation of any sort in my estimation. Only the common sense our Founders assumed we would maintain.

"A bill of rights may be considered, not only as intended to give law, and assign limits to a government about to be established, but as giving information to the people. By reducing speculative truths to fundamental laws, every man of the meanest capacity and understanding may learn his own rights, and know when they are violated . . . ."

~St. George Tucker, see here: http://www.constitution.org/tb/tb-0000.htm

~See also U.S. Constitutional scholar Stephen Halbrook's article on this topic: http://law.bepress.com/cgi/viewcontent.cgi?article=8710&context=expresso

The people who argue against the underlined part above are lawyers who have appointed themselves to be members of a magical priesthood which must be paid by you and other persons of "mean" [=stupid] mental capacities to interpret what the words "keep" and "bear" signify in plain language.

The lawyers in the forum who disagree with what I have written need to explain to the rest of us why we should trust them.

After all, if we simple folk can know when our rights are being violated without hiring a lawyer, then we don't need the lawyer because we know where the line in the sand is drawn.

We know when it is time to stop using the first amendment and start exercising the second in our interactions with those who have been subjecting us to a long train of abuses.

But lawyers can only make money "representing" us and "litigating" for us if we are too stupid to get REALLY PISSED OFF AND HANDLE THINGS WITH DEEDS AND WORDS RATHER THAN MERE WORDS.

So the lawyers/litigators tell us that we need them to speak for us, but how can they be trusted if they gain financially by being the ones who "represent" us and "litigate" for us?

Can they be trusted?

Remember: Money is involved.

If we need them to speak for us, they get rich.

If we can speak and act for ourselves, we solve problems ourselves and they sit unemployed (or doing what they are supposed to be doing, which is performing tasks no more complicated than scribbling out boiler plate contracts and wills).

The problem is that as long as we the people (and I here exclude lawyers from this phrase) act like we don't know our rights, we remain dependent on lawyers for our freedom.

And lawyers don't give freedom away--they charge us for it. They charge us a lot.

As long as we continue to pretend that "keep and bear" need some special interpretation, we will continue to not be allowed to "keep and bear"

And this is exactly what Jefferson feared--it is exactly what motivated him to write in the Declaration of Independence:

“[A]ll experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms [of governmental abuses and usurpations] to which they are accustomed.”

And everyone knows you cannot "abolish" an armed oppressor (i.e., a government or portion thereof) with words alone.

GettoPhilosopher
02-11-2012, 12:15 AM
I find it very interesting how many parallels there are between constitutional law and Biblical Theology. Both involve the interpretation of written documents and many of the same rules apply. In addition, some of the debates are the same. For instance, is a text to be correctly interpreted by itself - based solely on the words - OR - does it have to be interpreted in light of the original author's intent and in the context of his culture? Are we bound by the governing documents (Bible or Constitution), or can we use reason and other documents instead? Are the source documents even relevant today?

Like I said, I just find the parallels interesting. It's easy to see how the Simon Greanleaf School of Law could offer a program that offered degrees in both law and theology. It takes the same kind of mind to do either.

Yeah, why do you think I transitioned from a Christian university to law work so easily? ;D

It also hits the same problem....though I'd argue the Bible's harder due to the language issues and the vastly larger cultural/temporal separation. You have people arguing over what they feel is the "obvious" meaning of the text, people prooftexting and twisting it to mean what they want, you have "literalists" and "living document" people, there are people who view the source documents as fixed perfection and others that view them as good and noble but with room for growth....etc, etc, etc.

NewGuy1911
02-11-2012, 7:21 AM
"I use the term to refer to any law or regulation that is inconsistent with the general public meaning of the text of the constitution at the time it was ratified or amended. This is the method championed by Professor Randy Barnett in his book "Restoring The Lost Constitution: The Presumption of Liberty". Professor Barnett argues that it was written to be plainly understood by the people and that the only way that we can assure a consistent application of the constitution is to read it via the lens of plain English as the average American of the time would have understood the words and phrases. He rightly argues that any other way of reading the constitution subjects it to the political whims and prejudges of later judges. In other words our current system of crystal ball gazing and navel contemplation to define meaning or intent. Or as we sometimes see from judges - just plain rejection of the limits imposed by the constitution in favor of a favored political cause."

This is my vote, has been for some forty years. Guess I have a book to read!
Thanks for posting this and the original question.

I tend to remember how some people where treated during the Second World War, and how the Native America's where treated. Would not like to see those "ways of reasoning" return. This post hits a tender spot for me.

CalCop
02-11-2012, 8:01 AM
You left one out...I would vote for:
inconsistent with the intent of the writers of the constitution.

Uxi
02-11-2012, 9:51 AM
1) A constitutional convention would never be called because of the concern that it could not be limited to the issues for which it was called. I would be opposed for this very reason.


It's come pretty close a couple times and I covered the ones I think are most necessary. It's definitely possible there would be more issues, but that's fine. If they can get 38 States to ratify THEIR issues, then it SHOULD be in the Constitution, even if the Congress will never do it on it's own and you or I don't approve of that particular instance. Circumventing Congress and it's political apparatus around it is necessary as we need a few things no self serving politician in either party will ever do for fear of compromising their own power.


2) The only way the 2nd Amendment will ever be revised by means of an amendment is if both sides in the debate want it and can agree on the revisions. This would mean that both sides would have to get something they want. I do not see that happening.


Again, 38 States need to ratify. This is in our favor on the RTKBA. I think we would see the law codified as somewhat closer to what it should be (completely uninfringed), but it'd be worth it to let every State know that this applies to them, too. So Free States may see some small backtrack but we could leap miles if it addressed both keep and bear and common military use and all that.


3) The left is very happy to change the constitution simply by putting justices on SCOTUS who do not care one bit what the constitution says or what the founders intended. That is why 4 more years of Obama would mean the end of the 2nd Amendment. Change one judge and the next 2nd Amendment case to go before the court will result in Heller/McDonald being totally reversed. We already have seen this in the minority opinion in McDonald. IMHO anyone who rules that the 2nd Amendment does not protect a personal right does not care one bit what the constitution says.

Agreed. That just means it's not Happily Ever After. Our enemies on the issues dear to us will always need to be opposed politically. I'm just saying we can frame the argument a bit better in our favor and a preponderance of States are more likely to codify say... Shall Issue CCW and LOC (in at least rural areas)... in the Constitution and let all the States know that this is the mininum standard to be in the Union.

vincewarde
02-11-2012, 10:49 AM
Yeah, why do you think I transitioned from a Christian university to law work so easily? ;D

It also hits the same problem....though I'd argue the Bible's harder due to the language issues and the vastly larger cultural/temporal separation. You have people arguing over what they feel is the "obvious" meaning of the text, people prooftexting and twisting it to mean what they want, you have "literalists" and "living document" people, there are people who view the source documents as fixed perfection and others that view them as good and noble but with room for growth....etc, etc, etc.

Yes, obviously any analogy or parallel breaks down at some point - but IMHO "prooftexting" (in theology that's where you decide what position you want to take or preach and then look for a passage to support it vs. looking for the meaning of the text and letting that inform you) is EXACTLY how many, many liberals approach the Constitution. They first decide how they want the ruling to come down, then they go in search of support for their position, ignoring the obvious meaning of the text of the Constitution AND the intent of the founders. How else could they render the 2nd Amendment meaningless and interpret the 1st Amendment as banishing religion from the public square?

Tarn_Helm
02-11-2012, 12:10 PM
I find it very interesting how many parallels there are between constitutional law and Biblical Theology. Both involve the interpretation of written documents and many of the same rules apply. In addition, some of the debates are the same. For instance, is a text to be correctly interpreted by itself - based solely on the words - OR - does it have to be interpreted in light of the original author's intent and in the context of his culture? Are we bound by the governing documents (Bible or Constitution), or can we use reason and other documents instead? Are the source documents even relevant today?

Like I said, I just find the parallels interesting. It's easy to see how the Simon Greanleaf School of Law could offer a program that offered degrees in both law and theology. It takes the same kind of mind to do either.

This is not an accident.

Sanford Levinson has made explicit and has explored the nexus which you mention (http://books.google.com/books?id=Y94oPZKxBbAC&pg=PA200&lpg=PA200&dq=Sanford+Levinson+reformation+vs.+counter-reformation&source=bl&ots=gF9NJZmhsA&sig=gRrym3fMY_Op158tyqvt2t3rLXU&hl=en&sa=X&ei=r9g2T4SUHZPRiALbvpT-CQ&ved=0CCEQ6AEwAA#v=onepage&q&f=false).

GettoPhilosopher
02-11-2012, 1:08 PM
Yes, obviously any analogy or parallel breaks down at some point - but IMHO "prooftexting" (in theology that's where you decide what position you want to take or preach and then look for a passage to support it vs. looking for the meaning of the text and letting that inform you) is EXACTLY how many, many liberals approach the Constitution. They first decide how they want the ruling to come down, then they go in search of support for their position, ignoring the obvious meaning of the text of the Constitution AND the intent of the founders. How else could they render the 2nd Amendment meaningless and interpret the 1st Amendment as banishing religion from the public square?

I agree with your argument--though not with your characterization that only liberals do it--but that is not what prooftexting means. Prooftexting is when you drop a single out of context line or verse and assert that it proves your point without any argumentation or interpretation.

"Leviticus xx:xx says gays are an abomination", "John 3:16 says God loves the world, so calvinists are OBVIOUSLY wrong", etc. No theology, no argument, no context, no hermeneutics or interpretation, etc. If the verse or constitutional citation means what you think it means, do the work of using it properly. :p

Sent from my SPH-D710 using Tapatalk